What can I do if the clothing I make is patented? 9 Answers as of December 19, 2010

I want to sew beaded stones onto my clothes and saw that someone has patented sewing practically anything you can imagine on clothes!! How can this be? Does that mean every time anyone sews something on clothes they can be sued? It does not seem fair!! What can I do?

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First, you are to be congratulated for being concerned about the intellectual property rights of others.

In order to infringe a patent in the United States, your device or method must fall within the scope of one or more of the claims of at least one valid, unexpired US patent.

Now that you know that a patent exists that may have an impact on your activities, have that patent reviewed by a qualified patent attorney. He or she can confirm whether the patent is still in force. The patent attorney can also determine what exactly is the patented subject matter. Patented subject matter is found in the claims - the numbered paragraphs located at the end of the patent document. Many times the scope of the claims is narrower than the disclosure discussed earlier in the patent document. A patent attorney can make this determination for you.

Remember that many patent holders are willing to license their patents to third parties if everyone can agree on terms. Granting a license and obtaining license revenues can be preferable to costly patent infringement litigation for everyone concerned.

You raise a very important question for any marketer to consider when making and selling an article (including clothing) or device - does the making, using and mere selling of the article or device infringe the intellectual property of another person or company? Intellectual property includes regular and design patents, trademarks, and copyrights.

Regular patents and design patents are infringed when the making, use or sale of an article or device is covered by the claims, the claims being that part of the patent that defines the exclusivity of the patent owner's rights. A determination of the literal scope of a patent should be assessed by a patent attorney.

Please contact me at your earliest convenience to discuss the services you may need to address your concern.

You should consult with a licensed patent attorney who can perform an infringement analysis for you. It does seem unlikely that someone has a monopoly on sewing beads or other items to clothing. The claims of the patent define what devices or methods infringe and the claims should be analyzed by a patent attorney as the claims require interpretation by someone with patent experience.

Keep in mind that it is the claims section of a patent that defines the scope of the patent. The claims are often narrower than what you might think from a casual reading of the abstract or detailed description portions of the patent.

You should also consider the File History of the patent when interpreting the claims. Arguments made before the US Patent and Trademark Office to secure allowance can be used against the patentee.

Hire a patent attorney to review the claims for you and to suggest ways of avoiding them or designing around them.

More than likely you are misinterpreting the claims of the patent. In order to determine what a patent covers, you need to study the claims and see if all elements in the claims are met by the product which you wish to manufacture. Sometimes the true meaning of the claims may be difficult to ascertain. Many times the claims can have surprising meanings. These can be determined by looking at the history of the patent application in the U.S. Patent and Trademark Office.

In my opinion, these sorts of questions really require that you seek the assistance of an attorney skilled in patent litigation.

If the clothing you make is covered by the claims of a patent (which generally you need a patent attorney to decide) then either get a license from the patent holder or proceed with the chance of being sued.

Questions regarding patent infringement are complex and you should retain the services of a patent attorney to review the patent and your product to determine whether a case of infringement may exist. Determining the scope of patent claims and what it covers requires trained skills in reading the patent claims and also prior art.

It very well may be that the patent you are referring to does not cover your product at all.

In general, if you are doing something that infringes a patent that is currently in force, you need to either take a license or stop doing whatever is infringing. In this particular case you must be misreading the patent claims. Please contact me by email with the specific information.

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